Tajdin Allarakhia v. H.H. The Aga Khan Civ. App. 28-D-68; 7/2/69; Biron J.

 

Tajdin Allarakhia v. H.H. The Aga Khan Civ. App. 28-D-68; 7/2/69; Biron J.

The respondent landlord who required possession of a flat occupied by the appellant for re-development applied in the District Court for possession. According to the Rent Restriction (Amendment) (No. 2) Act 1966 Section 4, the court competent to make the order for possession is a court of the Resident Magistrate. The District Court which was presided over by a Senior Resident Magistrate granted the respondent possession. On appeal it was argued that the court had no jurisdiction in the matter and therefore the order it issued was ultra vires. The respondent argued that the case had in fact been tried by a resident magistrate because the court was presided over by a Senior Resident Magistrate and secondly, that if objection had been taken at the trial, the plaint could have been returned to be presented to the court of the Resident Magistrate in accordance with Order 7  Rule 10 of the First Schedule to the Civil Procedure Code 1966 and therefore the High Court could return the plaint to be presented to the proper court under Section 76 of the Civil Procedure Code.

            Held: (1) “the fact that a court is presided over by a magistrate of a particular grade does not, ipso facto, transform that court into the class of the magistrate’s grade. It is expressly provided for in the Act that each class of court shall have its own register and its own prescribed seal. These instant proceedings were heard and tried by the District Court of Dar es Salaam, and the order and decree had issued from that court bearing the seal of such court. Therefore, in my judgment, despite the fact that the court was presided over  by a senior resident magistrate, the trial was in fact held in, and the order and decree made by, the District Court of Dar es Salaam, which court has, as indicated, no jurisdiction to try such suit. This first submission therefore fails.” (2) “With regard to the second submission, whilst, with respect, I agree that this court on appeal has similar powers to the trial court from which the appeal has been brought, that is, it could return the plaint to be presented to the proper court, that, however, is a very far cry from upholding an order of a court which had no jurisdiction to make such order. As the district court had no jurisdiction is fatal and I fail to see how this court on appeal could possibly uphold such order made without jurisdiction.” (3) Appeal allowed.